Americans are getting a taste of unintended consequences from overly broad public-accommodation laws enacted in the past half-century. Christian business owners are especially burdened when individuals practicing what once was considered perversity are deemed “suspect classes” and are thus entitled to heightened legal protection.
A prime example is Elane Photography v. Willock. Elane Photography is a New Mexico business owned and operated by Elaine and Jonathan Huguenin. The Huguenins found trouble when they declined to provide photography services for a homosexual “commitment ceremony.” They objected to the request because the context of the ceremony would have required them to express a message via the photographs that conflicted with their religious beliefs. Insulted by the Huguenins’ refusal to photograph the ceremony, the lesbian couple filed a discrimination claim with the New Mexico Human Rights Commission (NMRHC) alleging that Elane Photography refused to provide services because of the couple’s sexual orientation.
The basis of the complaint was the New Mexico Human Rights Act, which prohibits
any person in any public accommodation to make a distinction directly or indirectly, in offering or refusing to offer services . . . to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation, or physical or mental handicap.
The statute goes on to define “public accommodation” as “any establishment that provides or offers its services . . . to the public.”
In light of the all-encompassing statutory language, the NMRHC had no trouble in ruling against Elane Photography and ordering the Huguenins to pay $6,637.94 in attorney fees and costs to Willock and her partner. The Huguenins appealed to the New Mexico courts. They argued that the definition of public accommodation failed to take into account the unique artistic nature of photography. The court rejected this claim inasmuch as the legislature provided no such exceptions in the statutory language.
The Huguenins also argued that the First Amendment protected them from creating—under the compulsion of law—an expression that would communicate messages antithetical to their religious beliefs. The Huguenins asserted that photography is much like storytelling and that government is not allowed to make them tell what is in their view an immoral story. The state courts disagreed and held that commercial photography is not so inherently expressive as to warrant First Amendment protections.
This case does pose some interesting constitutional issues. The Huguenins have on their side Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), in which the Supreme Court held that a parade organized by a private group was a form of expression and that the organizers could not be forced to express a message with which they disagreed.
The real lesson of the case, however, has nothing to do with free speech. Elane Photography v. Willock highlights just how easily state public-accommodation laws can put citizens in an untenable position.
Going back to the Middle Ages, the common law has imposed a duty to serve all comers on businesses providing essential goods and services to travelers. This rule developed in light of circumstances where travel posed myriad dangers. A traveler denied access to an inn would be at the mercy of the elements, robbers, and hunger. “[H]aving undertaken such a public business, and the public need being concerned,” wrote Harvard Law Prof. Joseph Henry Beale, Jr., in 1906, “the innkeeper must supply his service to all.” Similarly, common carriers such as railroad companies usually enjoyed a monopoly on transportation services. If the carrier refused to sell a ticket to a traveler, the wayfarer would be stranded and subject to many of the same indignities as a person denied access to the inn. Consequently, common carriers were cloaked with the public interest and were prohibited from discriminating.
Such rules did not apply to other establishments. The local pub, for example, was primarily intended to serve the inhabitants of the vicinage. “The difference between the inn and the tavern is therefore obvious,” Beale writes. “The one was instituted for the weary traveler, the other for the native . . . ”
In the United States, public-accommodation statutes began to be enacted during and after Reconstruction. In 1865, for example, Massachusetts prohibited discrimination “in any licensed inn, in any public place of amusement, public conveyance or public meeting.” The federal Civil Rights Act of 1875, struck down by the Supreme Court eight years later, declared that “all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of . . . inns, public conveyances on land or water, theaters, and other places of public amusement.” These early statutes focused on securing the rights of blacks and somewhat expanded the places covered beyond inns and public conveyances.
Title II of the Civil Rights Act of 1964 prohibits discrimination because of race, color, religion, or national origin in certain places of public accommodation, such as hotels, restaurants, and places of entertainment. Although much broader than the common law, Title II is based on Congress’s power to regulate interstate commerce and targets businesses relating to interstate travel and “principally engaged in selling food for consumption on the premises.” Title II does not cover such places as retail stores or commercial photography companies.
Modern state laws are a different story. New Mexico is not the only state that defines public accommodation as almost any business. In New Jersey a place of public accommodation includes “any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind.” California’s Unruh Act extends to “all business establishments of every kind whatsoever.” In Wisconsin, public accommodations are defined as “hotels, motels, restaurants, taverns, retail stores, exercise clubs, dry cleaners, auto repair shops, and other service establishments.”
In some states a “public accommodation” need not even be an actual place. For example, in New Jersey the Little League Baseball organization, although having no fixed location, has been deemed to be a place of public accommodation. Because of this status, the courts have required that Little League teams put girls on their rosters. Organizations such as the Boy Scouts and Jaycees have also been declared places of public accommodation.
States have also gone well beyond race and sex in defining suspect classifications. A District of Columbia statute covers
race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, and place of residence or business.
Statutory regimes such as the New Mexico Human Rights Act have moved far beyond the common law and make even Title II seem conservative. If a mom-and-pop photography business cannot refuse to work a lesbian “commitment ceremony” because such an event offends firmly held Christian beliefs, then what other activities will the states force Christians to participate in?
The conservative response to Elane Photography v. Willock has been to urge the passage of statutes allowing religious exercise to be raised as a defense in discrimination cases. The business owner would then be required to prove a substantial burden on sincere religious practice that outweighs the government interest in requiring accommodation of all customers.
While such statutes would be an improvement, this remedy sidesteps a more important question: Do we really need expanded “suspect classifications” and definitions of “public accommodation” that cover every conceivable business venture?
Identity politics has truly warped the American mind. When in the New Mexico Court of Appeals the Huguenins pointed out that a black photographer should not be forced to photograph a Klan rally, the court simply retorted that Klansmen were not in a protected class. The court declined even to consider the point that no one should be forced to provide services to an individual or organization whose beliefs or message is antithetical to that of the service provider. It was enough for the court that sexual orientation was on this list of suspect classifications.
The common law’s constraints on innkeepers and common carriers made sense. But today, under the law of many states, every business finds itself in the position of the innkeeper of yesteryear. Moreover, the list of suspect classifications continues to expand. Since “personal appearance” makes the list in D.C., one would suppose that the “no shirt, no shoes, no service” standard is out the window.
The states are involved in a great race to the bottom. There appears to be a competition to cover the most possible businesses and to extend “protection” (or perhaps “entitlement”) to every conceivable group—or at least those found worthy of liberalism’s blessing.
We need to examine the public-accommodation law of our individual states and look for the land mines that might lead to cases such as Elane Photography v. Willock. A strong argument can be made for the repeal of most state public-accommodation statutes inasmuch as the federal statute covers a bevy of establishments and is more than sufficient to address the few vestiges of discrimination that might exist today.
At a minimum, the state statutes should be pared back and, like the old common law, apply only to certain essential services that the customer could not garner elsewhere. For example, the fact that Willock immediately found another photographer who was willing to work the commitment ceremony and charged $1,200 less than the Huguenins’ standard wedding package should have extinguished any right to a cause of action. Willock suffered no harm and simply sought to force another to accept homosexuality as normal and good.
When American Christians ponder the persecutions that they will likely face in the near future, they typically think of decrees and enforcement actions emanating from Washington. The real and present danger comes from overly broad state laws that treat every business enterprise like a medieval inn.
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